Chevron Subpoenas Google, Yahoo & Microsoft To Get Info On Email Accounts Going Back Years

from the intimidation-or-legitimate-evidence-gathering? dept

Chevron is embroiled in a big lawsuit with some folks in Ecuador that has been going on for 19 years, and resulted in an $18.2 billion judgment against the company for environmental damage in the country. Chevron is accusing the lawyer for the Ecuadorians of racketeering. A New Yorker article from earlier this year goes into significant detail about the case, including Chevron arguing that the whole thing is "a shakedown," and questioning whether or not the lawyer went too far in the case.

We actually wrote about this case a few years ago, when Chevron sought footage that a documentary filmmaker had taken of people involved in the case, including the lawyer, Steven Donziger. While it seemed like the filmmaker should have the right to protect the work like journalists protect their sources, a court ordered it turned over to Chevron. That footage turned out to provide info that Chevron believes shows evidence of racketeering in trying to influence the court decision. Here's the New Yorker describing some of what was in the footage:

As Mastro played a series of outtakes for Judge Kaplan, Donziger’s outspokenness was on full display. He riffed, indignantly, about the inadequacies of the Ecuadoran legal system. “They’re all corrupt,” he says of Ecuadoran judges in one clip. “It’s their birthright to be corrupt.”

... In one scene, a scientific expert for the plaintiffs tells him that one measurement of groundwater contamination was not as strong as he had thought. “This is Ecuador, O.K.?” Donziger says. “At the end of the day, if there’s a thousand people around the courthouse you’re going to get what you want.” As for the scientific data, he adds, it’s “just a bunch of smoke and mirrors and bullshit.”

[...] In another scene that Mastro showed to the court, Donziger chats with associates over dinner at a restaurant. Someone at the table, referring to the popular antipathy toward Chevron in Ecuador, suggests that if the judge in Lago Agrio ruled against the plaintiffs he might be killed.

“He might not be,” Donziger replies, cradling a glass of red wine. “But he thinks he will. Which is just as good.”

All of this, plus some other evidence led Chevron to go after Donziger for racketeering. And, as part of that, it has sent a subpoena to Google, Microsoft and Yahoo seeking information on more than 70 email accounts, claiming that this info may help them show that Donziger was "falsifying evidence from the outset of the trial in Ecuador." CNET notes that Chevron believes that among other things, the lawyers for the Ecuadorians may have been involved in "blackmailing a judge, ghostwriting expert reports, and even helping to draft the court's final opinion."

It's important to note that Chevron is not (yet) seeking the contents of the email, but a variety of information about the accounts -- such as IP address info, physical address, phone numbers and billing info (if available). The idea seems to be that Chevron believes some of the addresses have been faked, and this will help to show that. However, some of the requests clearly seem to be overly broad -- including going after law professor and blogger Kevin Heller, who was not happy about this. Heller was able to have the ACLU call Chevron on his behalf about this -- getting them to drop the request for his info. Chevron claims that this helped them prove that Heller's account belonged to a real person, which is all they're seeking, but Heller is justifiably upset about all of this, sensing significant chilling effects and worrying about possible intimidation.

I will likely never know why Chevron subpoenaed me. But I do know that it is unacceptable for a party to litigation to try to obtain private information from a blogger-journalist who has criticized its tactics. This is not about my journalistic freedom; it is about the journalistic freedom of all bloggers. And it is not about Chevron; it is about any party that thinks it is acceptable to subpoena a blogger’s private information. I would be no less critical of an attempt by Greenpeace to subpoena Glenn Reynolds. Tactics like this need to be exposed and resisted, no matter who uses them or whom they target; passive acquiescence is simply an invitation to further abuses.

Heller also goes after Google, his email provider, for not more actively fighting back on his behalf:

I also think that Google needs to do far more to protect the privacy of its users.  Twitter has been very active in resisting attempts to obtain its users’ private information.  Google has also done so in the past, but it did nothing to help me, even after I informed it via email that I was a law professor and a blogger-journalist.  But again, this isn’t about me.  It’s about all the other bloggers who might find themselves facing a similar subpoena.  I’m lucky: I have friends like Glenn Greenwald to ask for help. I’m sure that the ACLU would assist anyone in my position — but not everyone knows that the ACLU is out there, much less that no case is seemingly too small or too unimportant for them to be concerned.  More importantly, the ACLU should not have to get involved in every case like this one (and again, I am but one of 44 people named in the subpoena); Google itself — and all other service providers in similar situations — need to be the first line of defense.

Google has asked the judge for more time to respond to the subpoenas, which Chevron has already agreed to. The magistrate judge is also going to hold a hearing in a few weeks to "evaluate" the subpoenas. Microsoft told Declan McCullagh at CNET that it had provided notice to the Microsoft accounts in question. Yahoo didn't respond to McCullagh's questions about the subpoenas, so it's unclear what they've done.

There may be legitimate reasons for Chevron's request, but given Heller's experience, it certainly appears that the fishing expedition is overly broad, and could have significant chilling effects in intimidating people who were legitimately helping out with the case. That should be a big concern, and the judge should be exceptionally careful in making the companies reveal info on these email accounts. We've talked in the past about things like the Dendrite rules for determining when possibly identifying info on anonymous people should be allowed, as it sets a high bar that protects a person's right to anonymity. Hopefully the court recognizes that Chevron's requests seem to go too far.

Filed Under: chilling effects, ecuador, email, privacy, steven donziger, subpoenas
Companies: chevron

X-plane Developer Sued By Patent Troll; Ponders Shuttering Business Or Defending

from the promoting-the-progress-of-destroying-a-business dept

We were just reporting on a hospital tech that declined to seek a patent for his creation, laughably stating that there are more important things than money (what a buffoon). He serves as a nice contrast to the wonderful world of patent trolls. One man is trying to help people and thinks that's more important than patents, while patent trolls are trying to leech off of producing entities and think that there is nothing more important than the patent (except perhaps the blood of small kittens or something). Often times they don't bother to produce anything, instead vampiring off of actual...you know...businesses.

Reader dfed alerts us to one such vampiric occasion, in which a non-producing entity patent troll is suing the developers of X-Plane, a rather innovative flight simulator. Uniloc has filed (pdf) for infringement on a patent, (6,857,067) for a "system and method are provided for preventing unauthorized access to electronic data stored on an electronic device." If the Uniloc name sounds familiar to you, you may remember when we wrote about it suing Minecraft (over the same patent) with such fervor that its lawyers couldn't be bothered to spell the game's name correctly. This patent was filed back in 2001, after, as X-Plane developer Laminar Research notes, several other software companies prior-arted all over this patent.

In 1988, FlexNet used a system to check a central server for permission to run a computer program. In 1989, Sassafras developed KeyServer, a computer program that checked with a central server for permission to run a program only if it had been purchased. In 1999, a program called “Clearcase” checked with a central server for permission to run a program only if it had been purchased. (Link here and instructions here.)

Laminar Research initially wrote a blog post on their site posing the same questions I imagine many victims of patent trolls have like whether they should be doing business in the United States. Such wonderful consequences our patent system produces. They were also initially seeking donations to fund their defense, which they were advised would cost roughly one and a half million dollars. Fortunately, because Uniloc is a patent troll, they also sued 9 other software developers and all the defendants are banding together to share the costs of defending themselves.

But that isn't the point. The point is that they shouldn't have to be in this position in the first place. For these developers to have to defend themselves in costly litigation against a company that can't be bothered to produce anything beyond a patent suit for something used years before its filing is a burden in direct conflict of the stated purpose for patents to begin with. I can't explain the silliness of this better than X-Plane's developer did on his site.

When I explained this to my Mom, she listened to my entire speech on Unilocs’ Lawsuit against me, my ideas on patent and litigation reforms, my thoughts on Uniloc and the lawyers representing them, and the total lawsuit cost of over $1,500,000, 3 years of stress to me and my wife, and the possible loss of a grandchild to her, and all she could stammer was “I don’t understand… what did you do that is WRONG?” All I could really answer was: “Well… I wrote a flight simulator for Android”.

And producing that software is supposed to cost the producer over a million dollars? What a joke.

Filed Under: chilling effects, patents, x-plane
Companies: uniloc

Senate Intelligence Committee A Lot More Interested In Punishing Whistleblowers Than In Investigating Why They're Blowing The Whistle

from the but-of-course... dept

A few weeks back, we noted how ridiculous it was that Senator Dianne Feinstein seemed a lot more upset that information about questionable US activities abroad was being leaked than she was about the fact that the US was involved in questionable activities abroad. And, now the Senate Intelligence Committee (of which Feinstein is the chair) has pushed out new rules targeting those who leak information to the press (what most of us call whistleblowing). The Secrecy News blog does a good job highlighting how this seems to be much more about sweeping bad activities under the rug and blaming whistleblowers, rather than actually stopping bad behavior by government:

In an earlier generation of intelligence oversight, leaks led to leak investigations in executive agencies, but they also prompted substantive oversight in Congress.  When Seymour Hersh and the New York Times famously reported on unlawful domestic surveillance in December 1974, the urgent question in Congress was not how did Hersh find out, or how similar disclosures could be prevented, but what to do about the alarming facts that had been disclosed.

In contrast, while pursuing leaks and leakers, today’s Senate Intelligence Committee has not held an open public hearing for six months. The Committee’s investigative report concerning CIA interrogation practices from ten years (and two presidential terms) ago has still not been issued.  Upon publication — perhaps this fall — it will essentially be a historical document.

Most fundamentally, the Committee’s new draft legislation errs by treating “classification” as a self-validating category — i.e., if it’s classified, it warrants protection by definition — rather than as the flawed administrative instrument that it is.

Effectively, the new rules would make it that much harder for anyone in the intelligence community to blow the whistle if they come across illegal activities by the government. It effectively treats all activity by the government as good and any "leak" as bad, even if it would serve to highlight massive government abuse. That's pretty scary. Not only will it create massive chilling effects for anyone seeking to stop illegal government behavior, but it will actually provide even more cover for the government to ignore the laws.

Filed Under: chilling effects, dianne feinstein, investigations, privacy, whistleblowers

Justice Department Sues Telco For Daring To Challenge Its Secret Demands For Private Information

from the hubris dept

The US Justice Department really does seem to be completely drunk with power these days. We've written before about how the FBI is famous for abusing the powers of "National Security Letters" (NSLs) that allow them to demand information from service providers, financial firms and the like -- with a built-in gag order. A few years ago, we wrote about an ISP, Calyx, which challenged an NSL it received, and had to fight the DOJ in complete secrecy for years, until the DOJ basically dropped the request and allowed Calyx's Nicholas Merrill to go public with the details of the legal fight.

However, in news revealed this week, there is a second telco that isn't just challenging an NSL -- which is not only expressly allowed under the law, though now the DOJ is required to tell recipients this fact with the NSL -- but also challenging the whole NSL process itself. In response, amazingly, the Justice Department sued the telco, claiming that it failed to hand over the information requested in the NSL, as required by law. There's no way to look at this other than as a vindictive move by the DOJ.

Instead of responding directly to that challenge and filing a motion to compel compliance in the way the Justice Department has responded to past challenges, government attorneys instead filed a lawsuit against the telecom, arguing that by refusing to comply with the NSL and hand over the information it was requesting, the telecom was violating the law, since it was “interfer[ing] with the United States’ vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security.”

They did this, even though courts have allowed recipients who challenge an NSL to withhold government-requested data until the court compels them to hand it over. The Justice Department argued in its lawsuit that recipients cannot use their legal right to challenge an individual NSL to contest the fundamental NSL law itself.

All of this came out this week after it having been secret for some time, thanks in part to the EFF's efforts to get some of the information public. The Wall Street Journal appears to have identified the telco in question as Credo, a small Northern California company.

The DOJ's response to the challenge -- suing the telco -- is incredibly aggressive, and is clearly designed to create a massive chilling effect for any other organization who might challenge an NSL, despite the clear legality of issuing such a challenge. This kind of response from the DOJ, however, is par for the course these days. It's been quite aggressive in trying to silence those who criticize its efforts, and this is just the latest example. While the excellent Wired article linked above finds it surprising that the government allowed the evidence of this DOJ lawsuit to become public, I don't think it's that surprising. If the goal is to create chilling effects and intimidate lots of others into not challenging NSLs, then letting it be known that you sued a telco who tried would certainly get the job done.

Filed Under: chilling effects, doj, justice department, national security letters, nsl, privacy, surveillance
Companies: credo, eff

UK High Court Judges Can't Agree On Twitter Joke Issue, Require Rehearing Of The Case

from the a-complete-farce dept

Remember Paul Chambers? He's the UK accountant who was arrested for tweeting:

"Robin Hood airport is closed. You've got a week and a bit to get your shit together, otherwise I'm blowing the airport sky high!!"

Overly serious law enforcement officials saw that as a terrorist threat. It's worth noting that airport officials didn't seem to think it was a serious threat, but understood that it was just a frustrated passenger venting. Still, the case went forward and he not only lost but then lost again on appeal. The case seems to get more farcical each level up the chain it goes. The latest is that, when the case got to the UK High Court, it was heard by two judges who couldn't come to agreement, so the whole appeal needs to be reheard with a three judge panel. Why they didn't do that the first time around is not explained.

Either way, it seems bizarre that tweeting an obvious joke should not only lead to convictions, but such a long and extended judicial process. Talk about creating chilling effects. The case has taken on lots of publicity in the UK, with a number of celebrities pledging support. The BBC article has a quote from Chambers' supporter comedian Al Murray, who found the whole situation laughably ridiculous:

"Paul's tweet has gone the full distance from joke to tragedy to farce via the High Court. We've all got our fingers crossed and will carry on fundraising."

Filed Under: al murray, chilling effects, uk
Companies: uk

Megaupload Details Raise Significant Concerns About What DOJ Considers Evidence Of Criminal Behavior

from the bad-cases-and-bad-law dept

Yesterday I wrote up a first reaction to the Megaupload case. Having spent some more time going through the indictment in much greater detail, I have some more thoughts and concerns.

First, it's important to acknowledge that the founder of Megaupload, who goes by Kim Dotcom, has a long history of flaunting flouting the law in a variety of ways. That makes him quite unsympathetic in a court. On top of that, there are certain claims in the indictment that, if true, mean it's quite likely that he broke the law. Whether or not the violations amount to racketeering & conspiracy is beyond any analysis that we're going to be able to do here. I would say that I would not be at all surprised if he's found guilty.

Where my concerns come in is in some of the "evidence" that's used to add to the overall indictment. To be clear, in a case like this, the issue is the evidence as a whole, combined to show intent and a general pattern to actions. So the allegations in the indictment don't necessarily mean that any individual action is, by itself, illegal. But, I still worry that some of the specific actions used to paint this picture are (1) potentially taken out of context, (2) are presented in a way that likely misrepresents the actual situation and (3) could come back to haunt other online services who are providing perfectly legitimate services.

• For example, the indictment points out that Megaupload did not have a site search, by which users could find material. That's interesting, but it seems like an odd piece of information in making the case. Other copyright cases have specifically found that having a search engine is part of an inducement claim -- so there's an argument that the idea not to have a search engine wasn't so much "conspiracy," as it was an attempt to follow the guidance of the court and to stay legal. To use the lack of a feature, that previously was shown to be a problem, as evidence of a conspiracy is crazy. Damned if you do, damned if you don't.



• Separately, the indictment lists various feature choices as part of making its case. There is, for example, the fact that if certain files aren't downloaded in a certain amount of time, then they are deleted. The indictment presents this as evidence that the service is mainly for infringement, because it potentially precludes the idea that the site is used for long-term backup. Of course, that falsely assumes that long-term backup is the only legitimate use of a cyberlocker. But that might not be the case at all. The service could (and is) used to just distribute large files in a directed, short-term effort. If anything, the fact that files are deleted after they're done being shared highlights a key legal function of the site: it was used by people to exchange large files once or twice, since they're too big to share via email attachment.
  
  On top of that, other, legitimate, sites have similar policies. The popular image hosting site Imgur does the same thing: if people don't access an image for an extended period of time, Imgur may delete it. That's not because it's encouraging infringement, but because it knows that the service is being used for short-term distribution.



• There is also the question of paying certain uploaders. However, there does seem to be a bit of a stretch in assuming that because some uploaders get lots of downloads by posting infringing content, all such "paid" users must be putting up infringing works. There are plenty of viral videos that are quite popular not because of infringement. In fact, much of this seems to be based on the simple assumption that encouraging more usage means they must be encouraging infringement. It's entirely possible that Dotcom did encourage infringement, but it feels like there should be more actual evidence of that, rather than pasting together a bunch of claims that could be interpreted in legitimate ways. Paying users for popularity is not, and should not, be evidence of criminality, or even infringement.



• There is also the claim that, while the company did remove some works upon takedown notice, it merely removed one link to the work, but left up other links. The issue here, as noted elsewhere in the indictment, is that Megaupload has a system for de-duplication -- so that if multiple people uploaded the same file, it only kept one version, but made it available at a different link for each person. This is the same sort of thing that lots of legitimate sites do, including Dropbox. The question, then, is if you do something like that with a locker service, and keep a single file, accessible through multiple locker links, what do you do if you get a takedown? This is still somewhat of an open question -- and was one of the points raised (in a civil copyright infringement context, which is very different) in the EMI vs. MP3tunes case. In that case, the company was told that it did, in fact, have to delete the actual file. But that raises other questions. Let's present a hypothetical: what if infringer A and authorized distributor B both upload the same file. The system de-dupes and uses a single file for each to access. Now, the copyright holder discovers A's version, and issues a takedown. It will automatically take down B's authorized work as well -- even though that copy was not infringing. Or... what if someone uploads a copy, but for their own personal use to access remotely, but never shares the link? In that case, no infringement is occurring... but DOJ seems to claim that the site would have to delete the file anyway, or there may be criminal risk. That's crazy.



• The complaint argues that because Megaupload's "top 100" list does not actually list the top 100 downloads on the site, this is more evidence of conspiracy. The issue here is that the list apparently removes files that are likely infringing. But... again, in other cases (like the IsoHunt case) such lists were also seen as proof of inducement. So, again it's a damned if you do, damned if you don't situation. If Megaupload's list showed infringing works, then they'd be charged with inducement... but removing them from the list makes them guilty of conspiracy?



• In addition, the indictment shows that, despite the company not being a US company, it did set up a DMCA agent, a tool to make removing files easier, and did take down works on request. There are some reasonable questions about if it ignored some takedown messages (likely) and the fact that it put limits on how many takedowns could be done per day with its tool. Those certainly work against the company in terms of retaining any DMCA safe harbors. Similarly, there is some evidence that the owners of the site may have uploaded infringing files themselves -- which, again, has no DMCA protections.



• The indictment points out that Megaupload used its hashing system to maintain a list of known child porn and block those files from being re-uploaded. The problem here is that copyright is different than child porn. Child porn is a strict liability issue: it is always illegal. There are no extenuating circumstances. But copyrighted content is different. It could be authorized. It could be fair use. And that depends on the specific use, not the file. So using a hash system there doesn't make sense, whereas it can make sense for child porn.



• The indictment also lists all sorts of emails, some of which are more damaging than others, but some of which may be taken out of context. All of them seem to assume that Megaupload employees can easily tell, often just by file name, what's infringing and what's not. I think this is an assumption that many people who don't understand copyright law make. And while you can guess... it's not always so easy. The recording industry, for example, regularly uses cyberlockers as a legitimate way to distribute promo copies. How would Megaupload know if certain files were legit or not, without further details? Yes, there's obvious infringement happening on the site, but will Megaupload always know which specific files are infringing?



• The indictment discusses demands from Universal Music that Megaupload would need to meet before UMG would even discuss a potential license. This included: "proactive fingerprint filtering to ensure that there is no infringing music content hosted on its service; proactive text filtering for pre-release titles that may not appear in fingerprint databases at an early stage; terminate the accounts of users that repeatedly infringe copyright; limit the number of possible downloads from each file; process right holder take down notices faster and more efficiently." While the DMCA does require action against repeat infringers, there are no legal requirements for the other issues. It's not clear why that should be evidence here. The fact that Megaupload didn't go above and beyond what the law requires shouldn't be seen as evidence of wrongdoing...



• Many of the emails discuss the fact that, in general, there are infringing works on the site. Yeah, but that's the same issue in the YouTube case and other cases. General knowledge that your tool is used for infringement is kind of meaningless, because you can't take works down if you don't know what's actually infringing.



• Money laundering claims are tricky and perhaps there was some "money laundering" going on here, but this indictment seems to include basic payments to Megaupload's hosting companies. Using payments to companies for hosting as evidence of money laundering seems pretty extreme, and suggests the possibility that this is just a "lumping in" situation, just to pile on more things that look bad, but aren't illegal by themselves.

Do these kinds of things work together to paint a picture of the company encouraging infringement? It's certainly possible that a court will add up a bunch of things like this and insist that's true. My fear is that, at least with some of these points, there are perfectly reasonable, non-infringing contexts for them. Then, what I worry about, is that in later cases, these types of things are used as "evidence" against companies and services that are legit. Even worse, there's a real worry that it creates chilling effects for lots of legitimate services who do things like de-duplification, or have legitimate backup services. If you're running Amazon S3 or Dropbox, do you now suddenly change how you do business, just to avoid the possibility of being accused of racketeering and criminal copyright infringement? That's worrisome.

But the bigger overall issue is why this action and why now? Companies in the US have filed civil cases against Megaupload in the US and the company was willing to come to the US and deal in US courts. Taking it up to a criminal "conspiracy" and racketeering charge seems like overkill, with tremendous collateral damage and chilling effects.

Filed Under: censorship, chilling effects, copyright, criminal copyright infringement, kim dotcom, racketeering, takedowns
Companies: megaupload

Man Facing 75 Years In Jail For Recording The Police; Illinois Assistant AG Says No Right To Record Police

from the insanity dept

Following on the news of a court in Massachusetts stating, clearly, that arresting someone for recording the police is a 1st Amendment violation, you'd hope that we'd start hearing fewer such stories. And yet, as Nick Burns alerts us (followed by a few more of you), over in Illinois, a guy named Michael Allison appears to be facing 75 years in prison for recording the police. Similar to other cases, the police charged him with illegal eavesdropping under an Illinois state law -- in this case, five felony counts, each of which could get 15 years in prison. Even worse, the Illinois Assistant Attorney General is arguing that there is no such thing as a right to film the police. Shouldn't there be a rule that if you're totally ignorant of basic Constitutional rights, you don't get to be Attorney General of anything? The Allison case is particularly nasty. It seems clear that it's a vindictive response to the fact that Allison challenged a fine he got for working on unregistered cars on his mother's property. As happens all too often in these types of cases, the prosecutors have been offering Allison plea bargain deals, and I'd imagine they'll keep doing that as public pressure gets stronger. It's the only way to save face against a ridiculous prosecution. Allison is refusing to accept any plea deal.

Also, if you watch the video above, it really shows the kind of chilling effects these arrests have. In the middle of the video, the news reporter comes across some law enforcement officials and asks them some questions, but the station's lawyers refuse to let the reporter play the audio on air... because it might violate the very same law on which the reporter is reporting. Later on, they do show some law enforcement officials -- including the Assistant AG mentioned above -- but only because they believe there's an exception to the law for journalists "at public hearings."

The ruling in Massachusetts doesn't directly apply here, as these are different circuits, but that doesn't mean the court can't or won't pay attention, and I'm sure Allison's lawyers will highlight the Glik ruling in court. Hopefully, the Illinois court finds the logic compelling.

Filed Under: arrests, chilling effects, eavesdropping, filming, illinois, michael allison, police

Can Someone Block Google From Passing Along A DMCA To ChillingEffects?

from the don't-see-how dept

Lori Grunin points us to a slightly odd post from a lawyer, Carolyn Wright, who works with photographers, concerning Google's well known policy of forwarding all DMCA takedowns to ChillingEffects where they're aggregated and made available to the public. This serves a dual purpose. Beyond just providing more info for the public on these takedown notices, it allows Google to point people to ChillingEffects when a search result has been removed due to a takedown request. Now, we have seen some try (and fail) to block Google's ability to forward such notices by claiming copyright on the notices themselves, but that's an unworkable strategy.

However, I have to admit that I'm confused about Wright's claims in the post. She discusses a photographer, Jason Wilder, who sent a DMCA take down notice to Google, but asked Google not to forward his takedown to ChillingEffects. Google told him that it was the company's official policy in order to remain transparent about any content removed from the site, and saying that if Wilder doesn't want the noticed passed along to ChillingEffects, then he can rescind the notice. Wright seems to think this somehow opens Google up to liability:

Nothing about 17 USC 512 requires that the complainant agree that his notice be made public and Google’s policy is not the law.  So by refusing to remove the copyrighted material, Google is now potentially liable for the infringement.  Now that’s cold.

It's true that nothing in the law requires that the notice be made public... but that's meaningless. Nothing in the law requires that the notice be kept private if the issuer requests it, either. Google is free to do whatever it wants with the notices, including making them public and forwarding them to whomever it wants. Nothing in that violates the DMCA. Furthermore, it accurately explained to Wilder that if he didn't want it public, he shouldn't file a notice. Again, that's entirely accurate. So what about any of that opens up Google to liability? The way you get hit with liability under the safe harbors is if you ignore a takedown request. But if Wilder rescinds his request, then there's no longer a request to obey. So how does this create liability for Google?

Filed Under: chilling effects, copyright, dmca, liability, photographs, takedown
Companies: google

Appeals Court: Arresting Guy For Filming Cops Was A Clear Violation Of Both 1st & 4th Amendments

from the huge-victory-for-free-speech dept

We've had a lot of stories this year about police arresting people for filming them. It's become quite a trend. Even worse, a couple weeks ago, we wrote about a police officer in Massachusetts, Michael Sedergren, who is trying to get criminal wiretapping charges brought against a woman who filmed some police officers beating a guy. This officer claims that the woman violated Massachusetts anti-wiretapping law, a common claim from police in such situations.

Segederin may have been better off if he'd waited a couple weeks for an appeals court ruling that came out Friday, because that ruling found that arresting someone for filming the police is a clear violation of both the First Amendment and the Fourth Amendment of the Constitution. How the case got to this point is a bit complex, but basically, a guy named Simon Glik saw some police arresting someone in Boston, and thought they were using excessive force. He took out his camera phone and began recording. The police saw that and told him to stop taking pictures. He told them he was recording them, and that he'd seen them punch the guy they were arresting. One officer asked him if the phone recorded audio as well and Glik told him it did. At that point, they arrested him, saying that recording audio was a violation of Massachusetts wiretap laws.

Even more ridiculous, they then had him charged not just with that, but also with disturbing the peace and "aiding in the escape of a prisoner." After realizing that last one didn't even pass the guffaw test, Massachusetts officials dropped that charge. A Boston court then dumped the other charges and Glik was free. However, he wanted to take things further, as he thought his treatment was against the law. He first filed a complaint with Boston Police Internal Affairs who promptly set about totally ignoring it. After they refused to investigate, Glik sued the officers who arrested him and the City of Boston in federal court for violating both his First and Fourth Amendment rights. The police officers filed for qualified immunity, which is designed to protect them from frivolous charges from people they arrest.

The district court rejected the officers' rights to qualified immunity, saying that their actions violated the First & Fourth Amendments. Before the rest of the case could go on, the officers appealed, and that brings us to Friday's ruling, which, once again, unequivocally states that recording police in public is protected under the First Amendment, and that the use of Massachusetts wiretapping laws to arrest Glik was a violation of his Fourth Amendment rights as well. The ruling (pdf) is a fantastic and quick read and makes the point pretty clearly. Best of all, it not only says that it was a clear violation, but that the officers were basically full of it in suggesting that this was even in question. The court more or less slams the officers for pretending they had a valid excuse to harass a guy who filmed them arresting someone.

The 4th Amendment bit may not be as widely applicable, since it mainly focuses on the Massachusetts wiretapping law. Here, the court notes that the law only covers audio recording in secret. But there is no indication that Glik did any of his filming in secret. It found the officers' arguments that he could have been doing lots of things on his mobile phone completely uncompelling, stating that the "argument suffers from factual as well as legal flaws."

The full ruling is embedded below, but a few choice quotes:

Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting "the free discussion of governmental affairs." Mills v. Alabama, 384 U.S. 214, 218 (1966). Moreover, as the Court has noted, "[f]reedom of expression has particular significance with respect to government because '[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.'" First Nat'l Bank, 435 U.S. at 777 n.11 (alteration in original) (quoting Thomas Emerson, Toward a General Theory of the First Amendment 9 (1966)). This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties....

[....]

In our society, police officers are expected to endure significant burdens caused by citizens' exercise of their First Amendment rights. See City of Houston v. Hill, 482 U.S. 451, 461 (1987) ("[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers."). Indeed, "[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state." Id. at 462-63. The same restraint demanded of law enforcement officers in the face of "provocative and challenging" speech, id. at 461 (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)), must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.

[....]

The presence of probable cause was not even arguable here. The allegations of the complaint establish that Glik was openly recording the police officers and that they were aware of his surveillance. For the reasons we have discussed, we see no basis in the law for a reasonable officer to conclude that such a conspicuous act of recording was "secret" merely because the officer did not have actual knowledge of whether audio was being recorded.

While this case isn't over yet, it's still a huge victory for those arrested by police for filming them in action. It suggests such people can bring charges against the police for civil rights violations in taking away their First Amendment rights. A tremendous ruling all around.

Filed Under: 1st amendment, 4th amendment, arrests, chilling effects, filming, free speech, massachusetts, police